* HONOURABLE SRI JUSTICE L. NARASIMHA REDDY + SECOND APPEAL No.839 of 2012 % 13-06-2014 Between:
# Pathan Sabirabi W/o. Kalesha And $ Shaik Rasool S/o.Late Baji Saheb … Petitioner … Respondent ! Counsel for the Appellant : Ms.Kumari G.K.V.D.
^ Counsel for the Respondent : Sri N. Sriram Murthy <Gist :
>Head Note :
?Cases referred : [2011] SCCR 739 HONOURABLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.839 of 2012 JUDGMENT:
The plaintiff in O.S.No.285 of 2007 on the file of the Principal Senior Civil Judge, Tenali, is the appellant. She filed the suit against her brother, the defendant, for the relief of declaration of title in respect of the suit schedule property, a house constructed covering an area of 47.3 square yards in Tenali Town, described in the suit schedule, and for recovery of possession thereof. It was pleaded that the father of the appellant and the respondent had purchased an extent of 108.6 square yards through a document, dated 05.10.1968, and thereafter gifted an extent of 61.3 square yards to the respondent in the year 1985. As regards the suit schedule property, a sale deed, dated 10.07.1990, Ex.A.1, is said to have been executed in favour of the appellant. She further pleaded that in the suit schedule property, her parents were living, her father died in the year 1994 and mother died in June, 2005. She alleged that after the death of their mother, the respondent occupied the suit schedule premises, even while giving his own premises on lease. Notices were exchanged between the parties, before the suit was filed.
2. The respondent filed a written statement, opposing the suit. He admitted the relationship and certain facts, but denied the transfer of the suit schedule property in favour of the appellant.
3. The trial Court decreed the suit through judgment, dated 18.03.2010. Aggrieved by that, the respondent filed A.S.No.482 of 2010 in the Court of XI Additional District & Sessions Judge (Fast Track Court), Guntur at Tenali. The appeal was allowed through judgment, dated 07.03.2012. Hence, this Second Appeal.
4. Ms. Kumari G.K.V.D., learned counsel for the appellant, submits that the lower appellate Court committed error in reversing the well considered judgment of the trial Court. She submits that Ex.A.1 is a registered document, and it stand proved with the filing thereof, and depositions of P.Ws.1 to 3. She contends that even when a specific question was put to the respondent who deposed as D.W.1, as to whether he intends to get Ex.A.1 examined by handwriting expert, he gave answer in the negative. She further submits that the respondent admitted that he did not even see Ex.A.1, and still, the plea that Ex.A.1 was forged, was accepted by the lower appellate Court and certain findings, which are contrary to the settled principles of law, were recorded.
5. Sri N. Sriram Murthy, learned counsel for the respondent, on the other hand, submits that though Ex.A.1 was filed by the appellant, the burden squarely rests upon her to prove it and the lower appellate Court has pointed out cogent reasons, as to how the document cannot be treated proved. He submits that though the suit schedule property is said to have been purchased in the year 1990, the appellant was never in possession thereof, nor any mutations were effected in her favour in the revenue records.
6. As observed at the threshold, the suit was filed for the relief of declaration of title and recovery of possession. The respondent is none other than the brother of the appellant. The trial Court framed the following issues for consideration:
1. Whether the plaintiff has got title to the plaint schedule property ?
2. Whether plaintiff is entitled for declaration and possession ?
3. Whether plaintiff is entitled for past profits ?
7. On behalf of the appellant, PWs.1 to 3 were examined and Exs.A-1 to A8 were filed. The respondent deposed as DW-1 and no other witnesses were examined. He filed Exs.B-1 to B-6, which are mostly demand notices. The suit was decreed and in the appeal, preferred by the respondent, the lower appellate Court framed the following point for consideration:
“Whether the plaintiff has been successful in proving the registered sale deed dated 10.07.1990 in her favour executed by her father?”
8. The basis for claiming title over the suit schedule property by the appellant, is Ex.A-1 Sale deed, dated 10.07.1990. In all fairness, the appellant admitted that the house, covering an area of 61.3 square yards was gifted by their father in favour of the respondent through the gift deed marked as Ex.B-1. The appellant filed the original of Ex.A-1 as well as the link document Ex.A-2 covering the entire property of 108 square yards. PWs.2 and 3 are the witnesses to Ex.A-1. Before the trial Court, the respondent pleaded that PWs.2 and 3 did not answer certain questions, pertaining to payment of consideration etc., satisfactorily, and in that view of the matter, Ex.A-1 cannot be said to have been proved. That contention was repelled by the trial Court by assigning cogent reasons, and the suit was decreed.
9. The only basis for the lower appellate Court to reverse the decree passed by the trial Court is that Ex.A-1 cannot be said to have been proved. The reasons assigned in this connection are that the appellant did not take any steps to assume possession of the property covered by Ex.A-1 for quite a long time. Reliance was placed upon the judgment of the Supreme Court in Rangammal v.
[1]
Kuppuswami . That was a case in which the dispute was not about the execution of a document but regarding existence of legal necessity, in the interest of a minor. The burden in this behalf rested upon the persons claiming under the document and on finding that they failed to discharge the burden, the document was held to be inoperative in law. Nowhere in the judgment it was mentioned that a registered sale deed cannot be said to have been proved, even after the document itself, is filed and witnesses thereto are examined.
10. The reason for the lower appellate Court coming to the conclusion, as it did, appear to be the making of an effort, to apply the test which is relevant for a document which is required to be attested; to a simple document, which does not need attestation.
11. Attestation is a typical process through which the witnesses, present at the time of execution of document are required to subscribe their signature. They must not only be present at the time of execution, but also must have seen the executant signing the document. Section 3 of the Transfer of Property Act defines it. Section 68 of the Evidence Act, mandates that a document, which is required to be attested, can be proved only by examining at least one of the attestors. Naturally, the person examined as attestor must speak to the events that are required to take place, for a valid attestation.
12. In the instant case, the document Ex.A-1 is a simple sale deed and it is not required to be attested under law. Therefore, the question of applying the test of attestation to such a document does not arise. The Indian Evidence Act itself provides for presumption of certain degree, in favour of the documents that are required to be attested and once the registration of a document and execution thereof by the executant are not disputed, the document cannot be ignored. The lower appellate Court itself took note of such an import factor pertaining to the document. In para-14, it is clearly mentioned that the respondent has stated that he did not verify the signature of his father on Ex.A-1, much less did he take steps to get the signature verified through an hand-writing expert. Further, except the self serving statement of the respondent, there was no other evidence to doubt, let alone to disprove Ex.A-1.
13. Therefore, the substantial question of law, viz., “whether the parameters that are relevant for attestation of a document can be applied to in the context of proof of a document, which is not required in law to be attested,” arises and the said question is answered in the negative. It is found that the lower appellate Court committed an error in reversing the decree passed by the trial Court.
14. The Second Appeal is, accordingly, allowed. The judgment and decree of the trial Court, dated 07.03.2012, in A.S. No.482 of 2010 is set aside. As a result, the decree of the trial Court shall remain in force. There shall be no order as to costs. Miscellaneous petitions, pending if any, shall stand closed.
L. NARASIMHA REDDY, J June 13, 2014.
Note:
L.R. Copy to be marked. B/O.
KTL
[1] [2011] SCCR 739